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Allegheny County Man Files Suit Saying He Was Denied Job For Medical Marijuana Use

Sarah Kovash
90.5 WESA

Pennsylvania opened its medical marijuana registry to patients two years ago, and it was only a matter of time before a case like Derek Gsell’s would arise.

Gsell, of Moon Township, is suing Universal Electric Corporation for allegedly rescinding a job offer after he failed a hair follicle drug test. Gsell said that’s despite the fact that he provided documentation showing he is a legal holder of a medical marijuana ID card.

“Same way that an employer shouldn’t be failing to hire somebody because they have another prescription, they also shouldn’t be failing to hire somebody based on their legal use of something that’s been certified by a physician that they’re allowed to use,” said Gsell’s attorney Christine Elzer.

Universal Electric, based in Canonsburg, provides electric power distribution solutions. Gsell said he had accepted the position of Supplier Quality Specialist, which he describes in his legal complaint as an office job which does not require him to handle electrical or chemical equipment.

Elzer and Gsell are basing their legal argument on a portion of Pennsylvania's medical marijuana statute.

"No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee's compensation, terms, conditions, location or privileges solely on the basis of such employee's status as an individual who is certified to use medical marijuana," reads the law.

In the complaint, Gsell argues that Universal Electric’s decision, “was undertaken with malice or reckless indifference to his rights under the Medical Marijuana Act.”

Jay Hornack is a private attorney and director of the University of Pittsburgh School of Law’s Human Resources Law Online Graduate Certificate Program. He said Gsell’s dispute is one of the first cases in the state to test the strength of the employment protections in Pennsylvania’s medical marijuana law.

“It certainly looks like Mr. Gsell has established a legitimate cause of action against Universal Electric,” said Hornack.

But because federal law classifies marijuana as a schedule 1 substance, he said Gsell and Universal Electric might be in for a long fight.

“There could be a major constitutional law case arising out of, if not this case, some other case involving a Pennsylvania employment situation,” said Hornack. “The possible argument by an employer would be that the state, although it has police powers, can’t act in conflict with federal law.”

Universal Electric might feel confident in this argument, based on the outcomes of previous cases, said Peter Meyers, who specializes in drug law at George Washington University Law School in Washington, D.C.

“There have been a number of cases brought in the courts and they've generally sided with the employer, that since it is illegal federally an employer has the right to say, 'We don't want our employees violating the federal marijuana law even though they are complying with their state medical marijuana law,'” Meyers said.

Meyers said situations like Gsell’s wouldn’t arise if the federal government changed marijuana’s classification from a schedule 1 substance, which is defined as lacking a, “currently accepted medical use,” and having “a high potential for abuse.”  

"It's a heck of a problem because these laws are contradictory. Normally the federal and state laws are in sync,” said Meyers. “Until the federal government makes the change we're still going to be faced for years, I think, with this terrible problem.”

In the meantime, Gsell is asking the company pay him $35,000 in damages, citing lost wages and benefits, emotional distress, humiliation, and inconvenience.

Universal Electric did not respond to requests for comment.

Sarah Boden covers health and science for 90.5 WESA. Before coming to Pittsburgh in November 2017, she was a reporter for Iowa Public Radio. As a contributor to the NPR-Kaiser Health News Member Station Reporting Project on Health Care in the States, Sarah's print and audio reporting frequently appears on NPR and KFF Health News.